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BOMBAY HIGH COURT
Sadhana S. Jadhav and N.R. Borkar, JJ.
Smt. Ragini Goma Bhoir and Anr. – Appellants
versus
State of Maharashtra and Anr. – Respondents
Criminal Appeal No.494 of 2014 alongwith Criminal Application No.299 of 2017
Decided on 2.3.2021
Indian Penal Code, 1860 – Sections 302/34 – Murder of wife – Common intention – Life sentence – Even though it would not be safe to rely upon dying declaration, however, in view of testimony of PW 1, which is corroborated by medical evidence coupled with subsequent conduct of appellants/accused, it will have to be held that, on the day of incident, accused No.2 assaulted deceased by sickle on her neck as a result of which she died – Neither overt nor covert act is attributed to accused No.1 – Assault by accused No.2 appears to be sudden – In facts and circumstances of present case, trial Court was not justified in convicting accused No.1 with aid of Section 34 of IPC – As regards conviction of accused No.2 under Section 302 of IPC, considering facts and circumstances of present case, benefit of exception 4 to Section 300 of Indian Penal Code needs to be given to him – Accused No.2 convicted for offence punishable under Section 304(I) of Indian Penal Code instead of Section 302 of Indian Penal Code, and sentenced to suffer R.I. for 10 years and to pay fine of Rs.5,000/- in default of payment of fine to suffer R.I. for 6 months – Accused No.1 acquitted of all charges levelled against her. (Paras 21, 22, 25 to 28)
Result: Appeal Partly allowed.
JUDGMENT
N.R. Borkar, J.—This appeal takes an exception to the Judgment and order dated 30th April, 2014 passed by the Sessions Judge, Raigad, Alibaug, in Sessions Case No.102 of 2012. By the impugned Judgment and order, the appellants who were accused Nos.1 and 2 before the trial Court have been convicted for the offences punishable under Section 302 read with 34 of the Indian Penal Code and sentenced to suffer R.I. for life and to pay fine of R.5,000/- each and in default of payment of fine to suffer R.I. for 6 months.
2. The deceased Rekha was the wife of PW 1 Laxman Motiram Bhoir. Accused No.2 is the elder brother of PW 1 and accused No.1 is the wife of accused No.2. At the relevant time, the deceased and accused were residing in the same building at Village Kopara, Taluka – Panvel, District Raigad. PW 1 and his wife were residing on first floor and the accused were residing on the second floor. Parents of PW 1 and accused No.2 were residing on ground floor. There was only one water tap connection for the entire building.
3. The incident took place on 28th November, 2011. On the day of incident, in the morning hours at about 9.15 a.m. a quarrel took place between the accused No.1 and the deceased on account of drawing of the water from the water tap connection. It is alleged that while the quarrel was going on, accused No.2 came there with sickle and assaulted the deceased on her neck. Due to assault, the deceased fell down. The deceased was injured and was thus taken to MGM Hospital.
4. On the basis of report lodged by PW 1 with the Kharghar Police Station, the said Police Station registered crime against both the accused initially for the offence punishable under Section 307 read with 34 of the Indian Penal Code and under Section 4 read with 25 of the Arms Act. The deceased succumbed to her injury on 9th December, 2011. After the death of the deceased, offence was converted to Section 302 read with 34 of the Indian Penal Code. On completion of investigation, charge-sheet was filed against both the accused for the offence punishable under Section 302 read with 34 of the Indian Penal Code.
5. The accused were charged and tried for the offence punishable under Section 302 read with 34 of the Indian Penal Code. As stated earlier, the trial Court convicted both the accused for the offences punishable under Section 302 read with 34 of the Indian Penal Code by the impugned Judgment and order.
6. We have heard learned counsel for appellants/accused and learned APP for the State.
7. The prosecution case is mainly based on direct evidence of eye witness viz. PW 1 Laxman Bhoir and the dying declaration of the deceased.
8. The following facts are not in dispute.
(i) The deceased Rekha was the wife of PW 1 Laxman Bhoir
(ii) The accused No.2 is the elder brother of PW 1 and accused No.1 is the wife of accused No.2.
9. Learned counsel for the appellants/accused has submitted that the evidence on record and more particularly, admissions in the cross-examination of PW 1 Laxman Bhoir will show that PW 1 was not present at the time of alleged assault. It is submitted that according to PW 1 many people had gathered at the place of incident, however, no independent witness has been examined. It is submitted that the trial Court thus committed an error in relying upon the evidence of PW 1 to convict the appellants/accused.
10. It is further submitted that the alleged dying declaration is doubtful. It is submitted that the evidence on record will show that the deceased, from the date of incident till her death, was in the Intensive Care Unit and was not in position to speak. It is submitted that considering the over all circumstances, the trial Court was not justified in concluding that the prosecution has proved it’s case against the appellants/accused beyond reasonable doubt.
11. On the other hand, learned APP has supported the impugned judgment and order of the trial Court. It is submitted that the trial Court has rightly be
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